Ohio communities that try to ban fracking with a citizen referendum would no longer be able to do so under legislation awaiting Gov. John Kasich’s signature, although it may not hold up to legal challenges.

Inside a bill that started out addressing foreclosures and expanded to increasing coverage for people with autism is a small portion with big implications for some local communities. The amendment would allow boards of elections or the Ohio Secretary of State to invalidate local initiative petitions if either determines the petition is in conflict with state law or the Ohio Constitution.

Some Ohio communities have brought ballot measures seeking to ban oil and gas drilling activity related to hydraulic fracturing, or fracking. Most notably Youngstown voters have since 2013 voted six times against a Community Bill of Rights that, if passed, would have banned the practice.

During the Ohio Senate’s 26 to 5 acceptance of House Bill 463, Sen. Kevin Bacon, R-Minerva Park and chairman of the Senate Civil Justice Committee, cited Youngstown and a Newark measure that decriminalized small amounts of marijuana as reasons for the bill.

Both local issues go against state rules. The Ohio Department of Natural Resources allows fracking and while Ohio has legalized medical marijuana, state law does not allow for any possession of marijuana. Newark officials have said they’ll still enforce the state’s marijuana laws, despite their voters’ intentions.

Under the bill, local boards of elections would first determine if a ballot petition is valid. If challenged, the Secretary of State would then decide.

According to the non-partisan Legislative Service Commission, “a reviewing court might find that the bill places an unconstitutional burden on the people’s right of initiative.” A court could say that right includes the ability to initiate a potentially unconstitutional statute, and “if the statute became law and was challenged on constitutional grounds, the courts would have the authority to prevent its enforcement.”

The bill could violate the separation of powers, too, giving the Ohio Secretary of State or a board of elections power – determining and interpreting constitutionality – that belongs to the courts.

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